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The Chain of Delegation

Every court sits on a grant of power from somewhere. This chart follows that grant document by document, from the U.S. Constitution down to the courtroom on White Earth, and shows the authority each step actually cites. Where a step cites something that does not carry it, the connector is red and the defect is named.

The cited authority carries the step
The cited authority does not carry the step

Quotations are from the documents themselves; most are published in full on this site and linked at each step. Nothing below turns on whether a tribal court is a good idea — only on which article authorizes this one.

Origin

The Constitution of the United States

Art. I § 8 cl. 3 · Art. II § 2 cl. 2 · Art. VI cl. 2 · 1789

Three clauses touch Indian affairs. Congress may regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. The President, with two-thirds of the Senate, may make treaties. Treaties and federal statutes are the supreme Law of the Land.

Every power below this line is a power someone handed down. None of it is free-standing.

Sound

Cited authority: the Indian Commerce Clause and the treaty power.

Congress legislates for Indian affairs and the United States makes treaties with the Chippewa. The 1867 treaty that created the White Earth Reservation (16 Stat. 719) and the statutes that followed rest here.

Federal statute

Indian Reorganization Act

Act of June 18, 1934, 48 Stat. 984, § 16 · as amended by Act of June 15, 1935, 49 Stat. 378

Section 16 gives a tribe the right to organize, to adopt a constitution and bylaws, and makes those effective when ratified by a majority of the adult members voting in an election called by the Secretary of the Interior and then approved by the Secretary.

Section 16 does not itself hand a tribal committee any particular power. It sets up the instrument — the constitution — through which the members decide what powers their officials will have.

Sound

Cited authority: IRA § 16 — the power to organize under a written constitution.

The Minnesota Chippewa Tribe organized under § 16 in 1936 and again in 1963. Article I § 1 of the current constitution says so in terms: The Minnesota Chippewa Tribe is hereby organized under Section 16 of the Act of June 18, 1934 (48 Stat. 984), as amended.

The delegating instrument

Revised Constitution and Bylaws of the Minnesota Chippewa Tribe

Ratified November 23, 1963 — 1,761 for, 1,295 against · approved by Assistant Secretary of the Interior John A. Carver, Jr., March 3, 1964

This is the document in which the people of the six reservations said what their government may do. Article V lists nine powers of the Tribal Executive Committee. Article VI lists six powers of each Reservation Business Committee. Fifteen powers: legal counsel, tribal land and assets, budgets and funds, contracts and agreements, licences and fees on non-members doing business, recognising community organisations, and the power to delegate any of the foregoing authorities.

There is no judiciary article. No court is created, no judicial power is vested, and no power to establish a court appears on either list. The word court occurs exactly once in the whole constitution — Article X § 2(d), removing an official for conviction of a felony in any county, State or Federal court.

Article XII sets the only route to a new power: a majority of qualified voters at an election called by the Secretary of the Interior with at least 30 percent turnout, and no amendment shall be effective until approved by the Secretary of the Interior.

Sound — and this is where the chain forks

Cited authority: Articles V and VI, the enumerated powers.

Everything the committees do that appears on those two lists is carried by this document. The question is what happens to everything else.

Branch A — carried

Courts over the enumerated subjects. The Interior Solicitor accepted these in 1986: courts over hunting and fishing rights are funded because Article V, § 1(f) and Article VI, § 1(c) authorize the Tribal Executive Committee and the reservation business committees respectively to administer tribal assets, and regulation of reservation business is authorized by Article V, § 1(g) and Article VI, § 1(d).

Conservation, resource and business matters sit on real articles. This branch holds.

Branch B — not carried

A court of general jurisdiction — custody of children, crimes, torts, contracts, probate, commitment. None of that is on either list.

Article XII was available: amend the constitution and add the power. It was not used. What follows in red is the route taken instead.

Broken link 1 — the Preamble is read as a grant of power

Cited authority: the Preamble (maintain and establish justice for our Tribe) and Article I § 3 (to preserve and maintain justice for its members).

The Interior Department had already answered this. On June 10, 1980 the Twin Cities Field Solicitor concluded that the constitution does not delegate power to authorize tribal courts to decide child custody, and that the Tribe would have to amend it first. Reviewing that advice, the Associate Solicitor concluded that the intent of the constitution was to grant powers through Articles V and VI rather than through Article I or the Preamble.

A preamble states purpose; Articles V and VI grant power. Reading the purpose clause as a power would, in the Solicitor's words, make unnecessary the detailed listing of specific authorities that follows it.

The Committee answers

Tribal Constitution Interpretations No. 1-80 and No. 2-80

Tribal Executive Committee, Grand Portage, October 22–23, 1980 · 11 for, 0 against, each

Four months after the Field Solicitor's opinion, the Committee issued two interpretations of its own constitution.

No. 1-80 declares that the Committee possesses and exercises quasi-judicial powers and that its written opinions shall be conclusive and final as to the meaning and interpretation of The Minnesota Chippewa Tribe's Constitution and the powers contained therein — and shall be binding upon any tribal court system established by tribal ordinance.

No. 2-80 holds that the Committee may create a court system by ordinance, because the purposes in the Preamble and Article I § 3 would be meaningless if interpreted to mean the implementation of these purposes was limited only to the authorities as set forth in Article V and VI of the Constitution.

Broken link 2 — the body being limited declares itself the final judge of its limits

Cited authority: a quasi-judicial power the Committee attributes to itself. No article is named — because none exists.

Articles V and VI contain no interpretive or judicial power, and Article XII gives the last word on the constitution's meaning to the voters and the Secretary, not to the Committee. Interpretation 1-80 is the Committee ruling on the extent of its own authority, and 2-80 is the ruling it then made.

In 1981 the Committee went further. Interpretation No. 4-81 states that it is the only proper body to interpret the Constitution of the Minnesota Chippewa Tribe and that the United States, through its courts, solicitors, or employees, lacks the authority or jurisdiction to determine the meaning of it. The 1986 Solicitor answered that the Department must exercise its own judgment, and that the one case relied on for the contrary view overstated the law.

The court is created

MCT Ordinance No. 15 — establishing the Minnesota Chippewa Tribal Court

Tribal Executive Committee, Minneapolis, April 29–30, 1985 · 6 for, 3 against

Section 100.01: The Judicial Power of the Tribe is vested in the Minnesota Chippewa Tribal Court and such other courts, judicial officers and commissioners with jurisdiction inferior to the Tribal Court as the Tribal Executive Committee may establish.

The recitals cite the Preamble, Article I § 3, Article XIII (rights of members) and inherent sovereign power. Articles V and VI — the articles that actually grant powers — are not cited anywhere in the ordinance.

Section 1000.01 then withholds from the new court the one power that would let it test any of this: the Court shall not be empowered to interpret the Constitution of The Minnesota Chippewa Tribe; such questions are certified forthwith to the Tribal Executive Committee and the appeal is stayed.

Broken link 3 — an ordinance vests a power the constitution never granted

Cited authority: Interpretation 2-80, the Preamble, Article I § 3, Article XIII, and inherent sovereignty.

Article XIII is a limitation on the governing body — it guarantees members equal protection and due process. A guarantee against the government is not a grant of power to it. Article V § 1(i) permits the Committee to delegate any of the foregoing authorities; judicial power is not among the foregoing authorities, so there was nothing of that kind to delegate.

The vote was 6 of the Committee's 12 members, at a committee meeting. Article XII requires an election of the people called by the Secretary, 30 percent turnout, and Secretarial approval. No such election was held. The constitution has been amended four times since 1963 — twice in 1972, twice in 2006 — all in Articles III and IV, on elections and terms of office. The word court still appears once.

The United States responds

Solicitor's Opinion BIA.IA.0708

Associate Solicitor, Division of Indian Affairs (Tim Vollmann) to Assistant Secretary — Indian Affairs, July 31, 1986

Asked by the Fond du Lac Reservation Business Committee to reverse the 1980 opinion, the Solicitor reaffirmed it: the Constitution of the Minnesota Chippewa Tribe must be amended before the Tribal Executive Committee or any of the Tribe's reservation business committees may authorize a tribal court to adjudicate child custody matters.

On the Committee's claim to the last word: the Department must exercise its own judgment. On funding: courts over hunting, fishing and reservation business are supported, because those powers are on the lists. On the Indian Child Welfare Act: 25 U.S.C. § 1911 does not … authorize tribal officials to adjudicate such matters if those officials have not been delegated such authority by the tribal membership in the tribal constitution.

The reason given is not hostility to tribal courts. It is that the tribal members have not decided to empower the tribal government to decide who should have custody of their children — and that the decision belongs to them.

Broken link 4 — the finding was never answered, only outlasted

Cited authority for continuing: none was issued. The ordinance stayed in force; the constitution was not amended.

Under 25 C.F.R. § 13.12(a)(2) the Assistant Secretary may approve an ICWA reassumption petition only if the tribal constitution authorizes the governing body to exercise jurisdiction over Indian child custody. White Earth's petition was refused on that ground. The courts continued to sit.

The courtroom

White Earth Band of Chippewa Judicial Code, Title 1: Courts

Enacted by the White Earth Tribal Council (the Reservation Business Committee under Article II of the MCT Constitution)

Chapter I § 1: There is hereby established the White Earth Band of Chippewa Tribal Court. The section names no enabling authority — not an article of the MCT Constitution, not Ordinance 15, not a band charter. It supersedes any Code or Ordinance of the Band that previously established or otherwise organized a judicial body.

Chapter II § 1 then claims jurisdiction over all actions under band codes; over all persons whose actions involve or affect the White Earth Band of Chippewa or its members, members and non-members alike; all civil causes at common law; and criminal jurisdiction over all persons who violate any Band codes, laws or ordinances within the reservation.

And § 1(i): The Court shall have jurisdiction to interpret all provisions of the Minnesota Chippewa Tribal Constitution and all other organic documents which pertain to the governing authority of the White Earth Band of Chippewa.

Broken link 5 — the band court claims what the tribal ordinance expressly withholds

Cited authority: the Judicial Code cites none for the court's creation.

Article VI lists six powers of a Reservation Business Committee. Creating a court is not one of them, and neither is enacting a criminal code. The only ordinance power in Article VI § 1(d) is to levy licenses or fees on non-members or non-tribal organizations doing business — subject to review by the Secretary of the Interior.

Chapter II § 1(i) takes for the band court the power to interpret the MCT Constitution. Ordinance 15 § 1000.01 — the ordinance that created the tribal court system in the first place — says that court shall not be empowered to interpret that constitution. A subordinate body cannot grant itself an authority its own source document withholds.

The claim of criminal jurisdiction over all persons also runs against Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), which holds that tribes have no criminal jurisdiction over non-Indians — the same case the 1986 Solicitor cites at 196 n.7.

Where it lands

The hearing you are sitting in

A judge appointed by the council, applying a code the council wrote, in a court the council created, under a constitution that lists fifteen powers and does not list this one — and with no forum empowered to hear the objection, because the ordinance sends constitutional questions back to the committee whose power is being questioned.

Running across all of it: Public Law 280

Public Law 83-280 (Act of Aug. 15, 1953, 67 Stat. 588; 18 U.S.C. § 1162, 28 U.S.C. § 1360) moved criminal jurisdiction and civil-court jurisdiction over every Minnesota reservation except Red Lake to the State of Minnesota. That is why the county sheriff answers the call on White Earth and the State district court hears the case. The Solicitor has read Public Law 280 tribes to share concurrent jurisdiction with the State (85 I.D. 433 (1978)) — not to have lost it — but the State's jurisdiction is real and still in force.

Giving it back is not the Council's to do. Under 25 U.S.C. § 1323 the State offers retrocession and the United States accepts it. Minnesota has done this once — for Bois Forte, criminal jurisdiction only (1973 Minn. Laws ch. 625; accepted at 40 Fed. Reg. 4026, Jan. 27, 1975). White Earth has not retroceded. The 2002 Strategic Plan sets full retrocession as a year-ten goal; if it ever arrives, the jurisdiction lands on the court charted above.

The five red links, in one place

A purpose clause is treated as a grant of power

Interpretation 2-80 builds the court on the Preamble and Article I § 3. Interior: the constitution grants powers through Articles V and VI rather than through Article I or the Preamble.

The Committee makes itself the final judge of its own authority

Interpretation 1-80 declares its readings conclusive and final and binding on any tribal court; 4-81 denies the United States any role. No article confers an interpretive power on the Committee.

Judicial power is vested by ordinance rather than by amendment

Ordinance 15 § 100.01 vests the Judicial Power of the Tribe on a 6–3 committee vote. Article XII requires a Secretarial election, 30 percent turnout and Secretarial approval. The people never voted on it.

A federal finding of no authority was never cured

The 1986 Solicitor reaffirmed that the constitution must be amended before the committees may authorize such a court. Four amendments have passed since; none touched this.

The band court claims a power its own source ordinance withholds

Judicial Code ch. II § 1(i) claims jurisdiction to interpret the MCT Constitution. Ordinance 15 § 1000.01 says the court shall not be empowered to do that.

What would repair the chain

One thing, and it is written into the document already. Article XII: an election called by the Secretary of the Interior, a majority of qualified voters with at least 30 percent turnout, and the Secretary's approval — adding a judiciary article that vests judicial power, defines its jurisdiction, and says who may interpret the constitution.

That is the step the Field Solicitor asked for in 1980 and the Solicitor of the Department of the Interior asked for again in 1986. It has never been put to the people. Until it is, every judgment below rests on a preamble.

The members of the Tribal Executive Committee take an oath, in Article III of the Bylaws, to preserve, support and protect the Constitution of the United States and the Constitution of the Minnesota Chippewa Tribe. Nothing here asks for less than that oath already promises.

Sources

Quotations are transcribed from the documents linked above. Scanned originals accompany each restored document on the documents page. This chart states what the records say; it is not legal advice, and it takes no position on whether the Tribe should have a court — only on which article authorizes the one it has.